Pascual (Migration)
[2025] ARTA 2128
•9 July 2025
Pascual (Migration) [2025] ARTA 2128 (9 July 2025)
Applicant: Ms Clarisa Pascual
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2116526
Tribunal: General Member M Brophy
Place: Sydney
Date: 9 July 2025
Decision: The Tribunal sets aside the decision under review
and remits the application for a Child (Residence) (Class BT) visa for reconsideration in accordance with an order that the applicant meets the following criteria for a Subclass 802 visa:
•cl 802.214 of Schedule 2 to the Regulations; and
•cl 802. 221 of Schedule 2 to the Regulations.
Statement made on 09 July 2025 at 4:58pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child of an Australian relative – lengthy gap in full-time studies – reasonable time – one course not completed – impact of the Covid19 pandemic restrictions – studies continuing – family health issues – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 802.214, 802.221; r 1.03
CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
Statement of Reasons
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and
Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 October 2021 to refuse to grant the visa applicant a Child (Residence) (Class BT) Subclass 802 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 18 August 2021. The delegate refused to grant the visa on the basis that cl.802.214 was not met because the delegate was not satisfied that the applicant had been a continuous full-time student since she had turned 18, and did not meet the requirements of cl.802.214(1)(c).
The applicant appeared before the Tribunal on 7 May 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor who is the father of the applicant Mr Crisostomo Rizal Pascual. The Tribunal was assisted by an interpreter in the Filipino and English languages.
For the following reasons the tribunal determined to set aside the decision under review and to remit the matter to the Minister to consider the remaining criteria for the visa.
Background
The applicant is a 26-year-old female who was born in Tarlac City in the Philippines. The applicant came to Australia on a Subclass 600 visa on 2 May 2021. Her parents, two sisters and one brother are living in Australia.
The sponsor, Mr Crisostomo Rizal Pascual, is the father of the applicant. He is a permanent resident. He has worked in Australia as a fly in fly out worker since 2007. In 2021 he sponsored his wife and two of his four children to Australia. The applicant and her sister were refused visas on the grounds they did not meet the study requirements.
CONSIDERATION OF CLAIMS AND EVIDENCE
The main issue in the present case is whether the applicant meets the time of application and time of decision requirements for undertaking a full-time course of study leading to a profession, vocation or trade qualification within six months or a reasonable time of completing the equivalent of year 12 in the Australian high school system or of turning 18 (cl.802.214(1)(c)) and whether she continues to meet those criteria at the time of decision (cl.802.221(2)(b)).
The time of application is 18 August 2021. Based on the applicant's identity documents which record her date of birth, the applicant was aged 22 at the time of application.
Criteria for applicants over 18
If, at the time of application, the applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl.802.214. These requirements must continue to be met at the time of decision: cl.802.221(2)(b).
Relationship status and history
At the time of application, the applicant must not be engaged to be married and must not have or ever have had a spouse or de facto partner: cl.802.214(1)(a). This must continue to be the case at the time of this decision: cl.802.221(2)(b).
Based on the information provided to the Department and the evidence to the Tribunal the Tribunal is satisfied the applicant was not engaged to be married and did not have a spouse or de facto partner at the time of application. The applicant told the Tribunal that was still the case, she was not engaged to be married, married or in a defacto relationship.
Accordingly, cl.802.214(1)(a) is met. It continues to be met at the time of decision.
Full-time study (or incapacitated for work)
At the time of application, the applicant must have, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: cl.802.214(1)(c).
This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]–[16]. In determining what is a
‘reasonable time’ for cl.802.214(1)(c), it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [19]. This requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl.802.214(2).
Where cl.802.214(1)(c) applies, it must continue to be met at the time of decision: cl.802.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.
I have considered the evidence on file and the oral evidence given at the time of hearing.
There was no evidence available to the Tribunal that the applicant was incapacitated for work because of loss of bodily or mental functions either at the time of application or at the time of decision.
Where cl.802.214(1)(c) applies, it must continue to be met at the time of decision: cl.802.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416. These cases are discussed further below.
In the material before the delegate, including the application form and Form 80 provided, the evidence was the applicant had completed her schooling at the College of the Holy Spirit of Tarlac on 21 March 2016. She had then commenced in August 2016 at Saint Louis
University studying a Bachelor of Science in Management Accounting. Her student ID issued to her was indicative of her being a full-time student. She completed those studies in July 2019 and graduated in January 2020. The applicant then applied to do a post graduate qualification (Masters degree) but she sat for the exams in July 2019 and December 2019 but was not successful. She received an offer from Clarendon Business College in Australia to study an Advanced Diploma of Accounting but was unable to take up the offer because of the Covid pandemic restrictions on travel and study. In July 2021 she enrolled at
Queensland Tafe to do a Certificate 1V in Accounting and Bookkeeping. She completed that course in December 2021. In the period from January 2022 to June 2022 she was enrolled in a Diploma of Accounting. At the time of hearing the applicant advised she was enrolled in a Diploma of Clinical Coding at E Health Education with an anticipated end date of May 2027. She also indicated she was continuing to pursue avenues for being accepted into the Masters program of her primary degree.
Significantly and relevant for this review, the evidence before the Tribunal is that since completing her secondary schooling the applicant had not continuously continued to study. This issue was discussed with the applicant and her sponsor at the hearing.
The language of the legislation expressly provides scope for an applicant to have a break in their studies between completing the equivalent of year 12 and commencing tertiary study, however the break is to be ‘within six months or a reasonable time’. Determining what is ‘a reasonable time’ will require consideration of the surrounding circumstances including factors such as the time involved, the activities that were undertaken during that time, their purpose and if no relevant activities were undertaken in that period, the reason why. The delegate accepted the applicant did not have a gap between schooling and university but found since completing university studies in July 2019 they did not study again until July 2021, a break on 24 Months.
A literal reading of cl.802.214(1)(c) seems to suggest that from the time the applicant has turned 18, or a reasonable time after they have finished the equivalent of year 12, until the time of application, they have been studying a full-time course which will lead to a professional, trade or vocational qualification.
Case law authorities, binding on the Tribunal, squarely address the continuing to study requirement. In Opoku-Ware v MIBP, the Court held that the provision does not permit an end to the study within the decisional time frame and considered that the phrase ‘has been undertaking’ in cl.101.213(1)(c) describes an action that has already commenced and remains ongoing. It stated that there are no words present in this provision to support a conclusion that the present perfect continuous tense is used to describe an action, in this case the undertaking of full-time studies, that has recently stopped. Further, the Court considered that the verb ‘continues’ in cl.101.221(2)(b) is written in the present tense and requires that the applicant is still undertaking studies at the time of the decision in respect of the visa. In Hussain, Judge Barnes observed that the Court in Opoku-Ware was addressing the need for the study to remain ongoing, in the sense of not having ceased, at the time of decision, and held that Opoku-Ware did not stand for the proposition that continuous involvement in study, without a pause, is required.
While the Tribunal was mindful of the gap in studies in the period from January 2020 when she graduated from university until she commenced studying in July 2021 the tribunal was also mindful as to the evidence as to what was occurring in the applicant’s family at the time. The applicant and sponsor told the tribunal that during the period she had not studied she had relocated to Australia to be with her family, and it was during the Covid pandemic so there were restrictions on movements and study opportunities. She was also impacted by the health crises her father had endured. He had worked in Australia as a fly in fly out worker since 2007. His income supported his wife and four children who remained living in the Philippines. In 2019 he suffered a hemorrhagic stroke and was unable to work. He remained
in the Philippines with his family until they all relocated to Australia in May 2021.He underwent surgery in May 2022 in Brisbane and has now resumed his work.
On the evidence before the Tribunal there is no dispute that the applicant was not continuously studying in the period from January 2020 until July 2021, a break of some 18 months and then from June 2022 until May 2025.
However, the Tribunal was mindful the facts in this case were similar to those in the case of Hussain. In that matter the Tribunal accepted the visa applicants’ claims and found they met cl.101.213(1)(c). However, the Tribunal was of the view that cl.101.221(2)(b) required that the visa applicants must have been ‘undertaking study’ from the time of the application to the time of decision and because they were not continuously studying from the time they commenced their courses they did not meet the criterion. The Tribunal took this approach on the basis that the words ‘has been undertaking’ study in cl.101.213(1)(c) “implied a continuous requirement”, and because the language of the criteria in cl.101.213(1)(c) and cl.101.221(2)(b) had been held not to permit an end to the study within the decisional time frame in Opoku-Ware v MIBP (2015) 297 FLR 416. The Tribunal concluded the visa applicants did not continue to meet cl.101.213(1)(c) at the time of decision and therefore did not meet cl.101.221(2)(b). The applicant contended the Tribunal had erred in taking the view that the criteria in cl.101.213(1)(c), including when read with cl.101.221(2)(b), could be satisfied only if study was “continuous” from the time study commenced up to the time of decision.
The Court held the Tribunal misconstrued and misapplied cl.101.213(1)(c) when read with cl.101.221(2)(b) as requiring the visa applicants to have been “continuously involved” in study from the time of commencement referred to in cl.101.213(1)(c) up to the time of decision. The Tribunal should have looked at that period and asked whether, characterised as a whole, the visa applicant had been undertaking relevant study in that period. This would involve examining what the visa applicants had been doing in that interval, including, the nature and duration of a gap in study and any explanation for such a gap and to the fact that, of its nature, the activity of study is intermittent.
Therefore, on the basis of the evidence and these authorities, the Tribunal finds that while the applicant was studying at the time of application and although she was not continuously enrolled during the period in between, applying the test as set out in Hussain, her studies were ongoing and therefore she does continue to meet the requirement in cl.802.214(1)(c) at the time of decision.
For the reasons above, cl.802.214 is met at the time of application.
At the time of decision, cl.802.214 continues to be met. Accordingly, cl.802.221(2)(b) is met.
Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Child (Residence) (Class BT) visa for reconsideration, in accordance with an order that the applicant meets the following criteria for a Subclass 802 visa:
•cl 802. 214 of Schedule 2 to the Regulations; and
•cl 802.221 of Schedule 2 to the Regulations.
Date(s) of hearing: 7 May 2025
Representative for the Applicant: Mr Crisostomo Rizal Pascual
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